INDOGULF CORPORATION LTD, MUMBAI V. ASST CIT RG 3, MUMBAI

ITA 765/MUM/2015

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9099 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Assessment Year: 1999-2000
• Appeal Filed On: 04-02-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A DHYANI
• Section: 244A; 274

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL C BENCH MUMB AI BEFORE SHRI G.S. PANNU, VICE- PRESIDENT AND SHRI PAWAN SINGH JUDICIAL MEMBER ITA NO. 765/MUM/2015 (ASSESSMENT YEAR 1999-2000 ) ITA NO. 766/MUM/2015 (ASSESSMENT YEAR 2000-2001 ) INDO GULF CORPORATION LTD. (SINCE AMALGAMATED WITH HINDALCO INDUSTRIES LTD.), CENTURY BHAVAN, 3 RD FLOOR, DR. ANNIE BESANT ROAD, WORLI, MUMBAI 400030 PAN AAACI5791F VS. DY.CIT,CENTRAL CIRCLE-1(4) ROOM NO. 902, 9 TH FLOOR, OLD CGO BUILDING (ANNEX), M.K. ROAD, MUMBAI 400 020 APPELLANT RESPONDE NT APPELLANT BY : SHRI YOGESH THAR (AR) RESPONDENT BY : SHRI R.A. DHYANI (DR) DATE OF HEARING : 05.09.2019 DATE OF PRONOUNCEMEN T : 18.09.2019 ORDERUNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THESE TWO APPEALS BY ASSESSEE ARE DIRECTED AGAINST THE ORDER LD. COMMISSIONER OF INCOME TAX (APPEALS)-12 [THE LD. CI T(A), MUMBAI DATED 11.11.2014 & 12.11.2014 FOR ASSESSMENT YEAR 1 999-2000 & 2000-01 RESPECTIVELY. IN BOTH THE APPEALS, THE ASSE SSEE HAS RAISED CERTAIN COMMON GROUNDS OF APPEAL, THEREFORE, BOTH THE APPEA LS WERE CLUBBED AND HEARD TOGETHER AND DECIDED BY COMMON ORDER FOR THE APPRECIATION OF FACTS. THE FACTS IN APPEAL FOR ASSESSMENT YEAR 1999 -2000 IS TAKEN AS LEAD CASE. THE ASSESSEE HAS RAISED THE FOLLOWING GR OUNDS OF APPEAL: ITA NO. 765 & 766 MUM 2 015-INDO GULF CORPORATION LTD. 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN C ONFIRMING THE ORDER OF THE LD. AO IN NOT GRANTING THE INTEREST U/S 244A IN ACCORDANCE WITH THE PROVISION OF THE I.T. ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN C ONFIRMING THE ORDER OF THE LD. A.O IN NOT ALLOWING THE INTEREST U/S 244A O F THE ACT UPTO THE DATE OF ISSUE OF THE REFUND VOUCHER I.E ON 20.05.2011 IN TE RMS OF THE CBDT CIRCULAR NO. 20D(XXII-22) DATED 20.08.1968 WHEREIN THE INSTR UCTIONS HAVE BEEN GIVEN FOR CALCULATING INTEREST UPTO THE DATE OF ISSUE OF THE REFUND VOUCHER. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE 'CA SE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN N OT CONSIDERING THE SUBMISSION OF THE APPELLANT THAT A. THE ABOVE GROUND IS COVERED BY THE DECISIONS OF HON'BLE APPELLATE TRIBUNAL, LUCKNOW IN APPELLANT'S OWN CASE IN ITA NO . 396 & 297/LKW/2009 FOR AY 1997-98 AND ITA NO. 419 & 420 I LKW/2011 FOR AY 2002-03. B. THE AFORESAID DECISIONS OF APPELLATE TRIBUNAL, L UCKNOW HAVE BEEN CONFIRMED BY THE HON'BLE ALLAHABAD HIGH COURT VIDE ORDER DATED 16 TH JULY 2012 AND 7 TH AUGUST 2012. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN C ONFIRMING THE ORDER OF THE LD. A.O IN NOT ALLOWING FURTHER INTEREST U/S. 2 44A WHICH IS ALLOWABLE TO THE APPELLANT ON THE AMOUNT OF INTEREST WITHHELD BY THE DEPARTMENT IN VIEW OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CA SE OF SANDVIK ASIA LTD. (280 ITR 643). 2. AT THE OUTSET OF HEARING, THE LD. AUTHORIZED REPRES ENTATIVE (AR) OF THE ASSESSEE SUBMITS THAT GROUND NO.1 TO 3 OF THE APPEA L ARE COVERED IN FAVOUR OF ASSESSEE BY THE DECISION OF MUMBAI TRIBUN AL IN ASSESSEE OWN CASE IN ITA NO. 764 & 767/M/2015 FOR A.Y. 1999-2000 & 2000-2001 DATED 20.01.2017 WHEREIN THE ORDER OF LUCKNOW TRIBU NAL IN INDO-GULF ITA NO. 765 & 766 MUM 2 015-INDO GULF CORPORATION LTD. 3 CORPORATION VS. DCIT IN ITA NO. 396 & 397/LKW/2011 DATED 15.07.2011 WAS FOLLOWED. THE LD. AR FURTHER SUBMITS THAT DECISION OF LUCKNOW TRIBUNAL HAS BEEN APPROVED BY HONBLE ALLAH ABAD HIGH COURT AS THE APPEAL FILED BY THE REVENUE HAS BEEN DISMISS ED VIDE ORDER DATED 16.07.2012 IN ITA NO. 43 OF 2011. FOR GROUND NO.4, THE LD. AR OF THE ASSESSEE SUBMITS THAT THIS GROUND OF APPEAL IS AGAI NST THE ASSESSEE BY THE DECISION OF HONBLE DELHI HIGH COURT IN CASE OF CIT VS. ENGINEERS INDIA LTD. [373 ITR 377 (DEL.)]. 3. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTAT IVE (DR) FOR THE REVENUE ON GROUND NO.1 TO 3 RELIED UPON THE ORDER O F LOWER AUTHORITIES AND ON GROUND NO.4 SUBMITS THAT SINCE THE LD. AR OF THE ASSESSEE HAS ALREADY CONCEDED THAT THIS GROUND OF APPEAL IS AGAI NST THE ASSESSEE. THUS, THIS GROUND OF APPEAL MAY BE DISMISSED. 4. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PARTI ES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. PERUSAL OF ORDER OF LOWER AUTHORITY REVEALS THAT CASE WAS LAST REVISED ON 31. 12.2010 U/S 143(3)/154/251/254, RESULTED IN REFUND OF RS. 9,14, 54,599/-. THE ASSESSEE FILED AN APPLICATION U/S 154, INTERALIA CLAIMING THAT THE INTEREST HAS NOT BEEN CALCULATED IN THE ORDER DATED 31.12.20 10, BEING CALCULATED UPTO 31.12.2010, WHILE IT WAS PAYABLE UPTO THE DATE OF REFUND VOUCHER I.E. ON 20.05.2011, AND FURTHER INTEREST ON INTERES T. THUS, BEFORE US, THERE IS TWO ISSUES, FIRSTLY UPTO WHICH DATE THE ASSESSEE IS ENTITLED TO INTEREST ITA NO. 765 & 766 MUM 2 015-INDO GULF CORPORATION LTD. 4 ON REFUND, IF TILL THE ORDER DATED 31.12.2010 OR UP TO 20.05.2011 (DATE OF REFUND VOUCHER) AND SECONDLY, IF THE ASSESSEE IS AL SO ENTITLED TO INTEREST ON THE INTEREST AS CLAIMED BY THE ASSESSEE. 5. THE ASSESSING OFFICER, REPUDIATED BOTH THE CLAIMS O F THE ASSESSEE FOR FIRST CLAIM I.E. THE UPTO DATE INTEREST TILL THE DA TE OF REFUND VOUCHER WAS DENIED BY TAKING VIEW THAT THE RAJASTHAN HIGH COURT IN RAJASTHAN STATE ELECTRICITY BOARD VS. CIT (2006) 281 ITR 274 (RAJ.) HELD THAT THE REFUND IS GRANTED, THE MOMENT THE OFFICER SIGNED THE PAYME NT INTEREST U/S 244A. THE SECOND CONTENTION OF ASSESSEE FOR CLAIMING INTE REST ON INTEREST WAS DECLINED ON THE GROUND THAT THE DECISION OF SANDVIK ASIA LTD. (280 ITR 643), RELIED BY ASSESSEE IS BASED ON A PECULIAR FAC TS OF SAID CASE AND CANNOT BE APPLIED ON THE FACTS OF THE PRESENT CASE AND THAT STATUTORY PROVISION DO NOT PROVIDE FOR GRANT OF INTEREST ON I NTEREST. THE LD. CIT(A) CONCURRED WITH THE FINDING OF ASSESSING OFFICER ON BOTH THE ISSUES/COUNTS. WE HAVE N 6. WE HAVE NOTED THAT THE CO-ORDINATE BENCH OF MUMBAI TRIBUNAL IN ASSESSEES OWN CASE IN INDO-GULF CORPORATION LTD. ( ITA NO. 764/MUM/2015 AND 767/MUM/2015, WHILE RELYING UPON T HE DECISION OF LUCKNOW BENCH IN ASSESSEES OWN CASE CITED (SUPRA) DECIDE THE ISSUE IN FAVOUR OF ASSESSEE HOLDING THAT INTEREST UNDER SECT ION 244A HAS TO BE GRANTED TILL DATE OF ISSUANCE OF REFUND VOUCHER. TH E RELEVANT PART OF ORDER OF MUMBAI TRIBUNAL IS EXTRACTED BELOW: ITA NO. 765 & 766 MUM 2 015-INDO GULF CORPORATION LTD. 5 7. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTI ES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE SHORT ISSUE BEFOR E US IS, WHETHER THE ASSESSEE IS ENTITLED TO RECEIVE INTEREST U/S 244A O F THE ACT TILL THE DATE OF ISSUANCE OF REFUND VOUCHER. WE FIND, THE TRIBUNAL, LUCKNOW BENCH IN ASSESSEES OWN CASE CITED SUPRA, HAD DECIDED THE IS SUE IN FAVOUR OF THE ASSESSEE BY HOLDING THAT INTEREST UNDER SECTION 244 A OF THE ACT HAS TO BE GRANTED TILL THE DATE OF ISSUANCE OF REFUND VOUCHER S. THE HONBLE HIGH COURT HAS ALSO APPROVED THE AFORESAID DECISION OF THE TRI BUNAL WHILE DISMISSING THE APPEAL PREFERRED BY THE DEPARTMENT. IN VIEW OF THE AFORESAID, WE DIRECT THE ASSESSING OFFICER TO ALLOW INTEREST ON REFUND U NDER SECTION 244A OF THE ACT TILL THE DATE OF ISSUANCE OF REFUND VOUCHER ON 20 TH MAY 2011. THE ISSUE BEING IDENTICAL IN ASSESSMENT YEAR 2000-01, OUR AFO RESAID ORDER WILL APPLY MUTATIS MUTANDIS TO THE SAID ASSESSMENT YEAR AND TH E ASSESSING OFFICER IS DIRECTED TO ALLOW REFUND OF INTEREST ACCORDINGLY. G ROUNDS NO. 1 AND 2 FOR BOTH THE ASSESSMENT YEARS ARE ALLOWED. 8. IN GROUND NO.3, WHICH IS COMMON IN BOTH THE ASSE SSMENT YEARS, THE ASSESSEE HAS CLAIMED INTEREST ON DELAYED PAYMENT OF INTEREST UNDER SECTION 244A OF THE ACT. 7. CONSIDERING THE DECISION OF TRIBUNAL, WE FIND THAT THE ISSUE/FIRST CONTENTION RAISED IN GROUND NO. 1 TO 3 ARE SQUARELY COVERED IN FAVOUR OF ASSESSEE. HENCE, WE DIRECT THE ASSESSING OFFICER TO ALLOW THE REFUND OF INTEREST TILL THE DATE OF ISSUANCE OF REFUND VOUCHE R I.E. 20 TH MAY 2011. IN THE RESULT, GROUND NO.1 TO 3 ARE ALLOWED. 8. GROUND NO.4 RELATES TO CLAIMING INTEREST ON THE INT EREST. THE LD. AR OF THE ASSESSEE HAS FAIRLY CONCEDED THAT THIS GROUND O F APPEAL IS COVERED AGAINST THE ASSESSEE BY THE DECISION OF HONBLE DEL HI HIGH COURT IN CIT VS. ENGINEERS INDIA LTD. (SUPRA). HENCE, THIS GROUN D OF APPEAL IS DISMISSED. ITA NO. 766/MUM/2015 FOR A.Y. 2000-01 9. THE ASSESSEE HAS RAISED IDENTICAL GROUND OF APPEAL AS RAISED IN APPEAL FOR A.Y. 1999-2000, WHICH WE HAVE PEARLY ALLOWED. THERE FORE, THIS APPEAL IS ALSO PARTLY ALLOWED FOR SIMILAR DIRECTION. ITA NO. 765 & 766 MUM 2 015-INDO GULF CORPORATION LTD. 6 10. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COU RT ON 18/09/2019. SD/- SD/- G.S. PANNU PAWAN SI NGH VICE-PRESIDENT JUDICIAL MEMBER MUMBAI, DATE: 18.09.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR C BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI